Marriage Equality Not Left to States or Democratic Popular Vote


As the U.S. Supreme Court will decide this summer whether to legalize marriage equality for same-sex couples throughout the nation, I have often heard it said that this issue should be left up to the individual states to decide in legislative house or in the voting booth by the people. As the argument goes, this is a states-rights issue, and the national government should not intrude by imposing its will on the states. In addition, numerous other objections abound by a number of conservative politicians and theologians.
Many conservative and political individuals and organizations oppose marriage for same-sex couples for the stated reason that, according to them, so-call “Judeo-Christian” tradition – a term I reject since it obscures the major differences between these two monotheistic religions — dictates that God has ordained marriage between one man and one woman, and this has been the case throughout millennia. They also argue that children need both a mother and father to develop normal and healthy lives.
For the sake of discussion, however, I would like to refute some of the theocratic and political claims of so-called “God’s law” and the alleged consistency in the foundation of marriage. I argue that the institution of marriage throughout time and culture has always been and continues to evolve, transition, and undergo redefinition.
Early Religious Teachings
Let’s look at some of the religious teachings, many of which point out that the institution of marriage was constructed very differently from what some today consider as “traditional marriage.”
Approximately 4000 years ago, Abraham (commonly referred to as “the father of the Jewish and Arab people” and Patriarch of Jews, Christians, and Muslims) was a distant ancestor of Shem, son of Noah. When his wife Sarah was unable to conceive, as it is written, Sarah told Abraham to conceive a child with his Egyptian maidservant Hagar, who thereafter had a son, Ishmael. Soon afterward, Sarah also conceived a son, whom they called Isaac. After Isaac’s birth, Abraham banished Hagar and Ishmael into the desert.
In addition, according to the Jewish Bible, for example, Deuteronomy 25:5 “When brothers live together and one of them dies and has no son, the wife of the deceased shall not be married outside the family to a strange man. Her husband’s brother shall go in to her and take her to himself as wife and perform the duty of a husband’s brother to her,” and Deuteronomy 25:6 “And it shall be that the first-born whom she bears shall assume the name of his dead brother, that his name may not be blotted out from Israel.”
I’m not hearing any so-called “Judeo-Christian” leaders calling on men in childless marriages to take on mistresses, and once they conceive, to banish them and their children from their towns, or for men to marry their brothers’ widows even if the men themselves are already married. Where was the requirement for only one man and one woman? Was this how we do and should define “traditional marriage” today?
Moreover, prior to 1967, seventeen states prevented consenting adults from engaging in sexual activities, let along marriage, with anyone from another so-called “race.” In the case of Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court of the United States declared the state of Virginia’s anti-miscegenation statute, the so-called “Racial Integrity Act” of 1924, unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on adult consensual sexual activity and marriage throughout the U.S.
The plaintiffs in the case were Mildred Loving (born Mildred Deloris Jetter, a woman of African descent) and Richard Perry Loving (a man of white European descent), both residents of Virginia who married in June 1958 in the District of Columbia to evade Virginia’s law. Upon returning to Virginia, police arrested and charged them with violating the act. Police entered their home and arrested them while they slept in their bed. At their trial, they were convicted and sentenced to one-year imprisonment with a suspended sentence on the condition that the couple leaves the state of Virginia for a period of 25 years. At the trial, the judge, Leon Bazile, used Biblical justifications, “God’s law,” to convict the couple:

 “Almighty God created the races white, black, yellow, Malay, and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.”

I wonder whether religious and political conservatives who are today calling Judge Vaughn R. Walker, who ruled California’s Proposition 8 banning same-sex marriage as unconstitutional, an “activist judge” would also brand members of the Supreme Court who struck down anti-miscegenation laws as “activist judges” as well.
Redefining the Purpose of Marriage and Women’s Rights
The purpose of marriage has undergone changes throughout time and space: some societies considered marriage as a social requirement, or as a religious obligation, or even as a civil responsibility to supply citizens for the country. Some cultures promoted arranged marriages, childhood marriages, others encouraged marriage later in life.
Marriage has often been connected to property rights and not to love and romance. Fathers often figuratively and literally owned their daughters. Upon marrying, fathers transferred rights of ownership to the husbands, and women forfeited rights to all assets they may have acquired before marrying, and were denied rights to acquire property or the wages they earned during marriage.
The New York State Married Women’s Property Act of 1848 and amended in 1849 redefined property rights between married couples by stating, in part: “The real property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the sole disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.”
“For the Sake of the Children”
While family constellations come in many variations — single parent, blended, extended, communal, and many others — I hear many people who defend marriage solely for different-sex couples on the basis that the best interests of the children are served only in living relationships with one father and one mother.
All reputable scientifically-based research studies have found that outcomes for children raised by lesbians or gay men are neither better nor worse than for other children in terms of issues involving “peer group relationships, self-esteem, behavioral difficulties, academic achievement, or warmth and quality of family relationships. In addition, a study by two researchers at the University of Southern California found that children with lesbian or gay parents show more empathy and appreciation for social diversity, and they are less confined by gender-role stereotypes. In fact, there simply is no data substantiating any claims that different-sex couples raise physically- and psychologically-advantaged children compared to children raised by lesbians, gay men, or bisexual people or within same-sex coupled households.
I remember back to the early 1990s, when residents in a section of Los Angeles erupted following the acquittal of police officers accused of exerting excessive force against motorist Rodney King. A few weeks later, the fictional TV character, Murphy Brown, played by Candice Bergen, gave birth. Vice President Dan Quayle, in his own inimical fashion, concluded that the riots in Los Angeles were caused by a deterioration of “traditional family values” as represented by the unmarried Murphy Brown.
Ross Perot, Texas billionaire and would-be independent presidential candidate, declared on ABC’s 20/20 in 1992 before his withdrawal from the race that if elected he would not appoint “adulterers or homosexuals” to high position of government. “No, I don’t want anybody there that will be at a point of controversy with the American people,” said Perot. “It will distract from the work to be done.”

In the fall of 2011, as I watched from my then-home in Ames, Iowa the political TV ads by the candidates running in the all-important first-in-the-nation Republican Iowa Caucuses, a recurring theme emerged. In their attempts to appeal to the estimated 60 percent of Iowa Republican caucus goers who define themselves as Evangelical Christians, most of the candidates emphasized their “so-called Christian family values,” which, by the way, opposed marriage for same-sex couples and inclusion of LGBT members of the U.S. military. We saw this theme most clearly exhibited in Texas Governor’s Rick Perry TV ad “Strong”: “I’m not ashamed to admit that I’m a Christian, but you don’t need to be in the pew every Sunday to know there’s something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school. As president, I’ll end Obama’s war on religion. And I’ll fight against liberal attacks on our religious heritage. Faith made America strong. It can make her strong again.”
In addition, political and theocratic Right groups attempt to ban books on lesbian, gay, bisexual, and transgender themes geared to students over the accusation that these books do not promote “traditional family values.”
One does not have to look far to see a basic confusion (translated as “deception”) in terminology between “family” (denoting a configuration of individuals) and “values” (related to intrinsic human principles and qualities). In addition, the term traditional family — currently defined as a family constellation composed of two married parents (a man and a woman) with birth children — is even more problematic because it is a relatively modern invention constructed during the rise of the Industrial Age. The Right holds it up as THE standard against which all others are judged, even though a 2013 U.S. Census Bureau report found that a mere 19 percent of children currently reside within a “nuclear family” with a married birth mother and family who live with them. This is a drop from an already relatively low 40.3 percent in 1970.
In truth, the concept of traditional family values as used by the political and theocratic Right has nothing to do with tradition, with family, or even with values. It has more to do with politics, with separating people into distinct and discrete camps of us versus them, while blaming and scapegoating the other for problems facing our country and our world.
At one time, the Right scapegoated domestic “Communists” using scare tactics to recruit members into its organizations and bring donations in to fill its war chests. Now, since the relative demise of world Communism and the fall of the Soviet Union, the Right needs other villains to scapegoat to further its own political agendas, and has thus targeted those who fall outside its current definition of the traditional family, which include lesbians, gay men, bisexuals, those who fall along the transgender spectrum, people who favor and advocate for protecting women’s reproductive freedoms, and even heterosexuals who either choose not to marry or choose not to bear children.
These politicians, educators, and clergy seem somehow to have forgotten the warning given by poet Walt Whitman: “I say of all dangers to a nation, as things exist in our day, there can be no greater one than having certain portions of the people set off from the rest by a line drawn – they not privileged as others, but degraded, humiliated, made of no account.”
We must as a society, then, expand the definition and remove from our vocabulary words that delineate people according to relationship status, for example, the value-laden terms unwed mother, illegitimacy and illegitimate child, bastard child, out of wedlock, bachelor, old maid, Miss, Mrs. — and consign these words to the archives of history because when currently used, separate people from one another and result in lowered self-esteem.
Marriage Equality a Federal Issue
I argue most emphatically that marriage rights in general, and more specifically, marriage equality for same-sex couples is indeed a federal issue.
This once again reminds me of the concept of “tyranny of the majority” articulated back in the 1830s by Alexis de Tocqueville, French political scientist and diplomat, who traveled across the United States for nine months between 1831-1832 conducting research for his epic work, Democracy in America. Though he favored American democracy, he found as its major limitation the stifling of independent thought and independent beliefs. In a country that promoted the notion of “majority rules,” this effectively silenced minoritized peoples. This serves as a crucial point because in a democracy, without specific guarantees of the rights of minoritized peoples, there is danger of domination or tyranny over others whose ideas, values, and social identities are not accepted by the majority.
Though, or course, the issues are different in many ways, take the following additional cases for example:
If the issue of prohibiting the practice of slavery were not settled in Lincoln’s 1863 Emancipation Proclamation and later codified in the Constitution, and was left instead to the individual states, I question whether the states would have voluntarily outlawed the practice of slavery, and I believe the practice of legalized slavery would have lasted long after the Civil War in some states.
If the issue of school desegregation were not settled in the 1954 Brown v. Board of Education Supreme Court decision and later strengthened in the federal Civil Rights Acts of 1964 and 1965, and were left to the individual states, I question whether the states would have voluntarily relinquished the practice of racial segregation, and I believe this practice would remain to this very day in some states.
If the issue of women’s reproductive freedoms were not settled in the 1973  Supreme Court decision Roe v. Wade, and left to the individual states, I believe today women’s rights to control their own bodies would be dependent on their geographic location, thus disqualifying many women from their reproductive rights.
The founders of this country provided a mechanism for the protection of minoritized people against the tyranny of the majority. The checks and balances between the three branches of government: Executive, Legislative, and Judicial, and the authority of federal legislation over the individual states have been seen time and again (though of course not perfectly and not without major adjustments and reversal of policy along the way) to offer some form of protection for minority rights and responsibilities. If we leave these important issues of social justice and social inequality to majority rule, then many of the evils that have plagued this country throughout its history will continue long into the future.
While the 14th Amendment to the U.S. Constitution guarantees equal protection under the law, (“…no state shall … deny to any person within its jurisdiction the equal protection of the laws”), our current patchwork of disparate and contradictory laws and state constitutional amendments remains not only confusing but also inequitable. Today, as a gay man, I can marry another man in my home state of Massachusetts and in 36 other states and the District of Columbia, but my marriage would be declared null and void in the remaining states.
The rights of same-sex couples to legally marry WILL NOT compel religious institutions to conduct religious marriages if they are opposed. Religious institutions will continue to set their own standards for conducting marriage ceremonies as they always have, without fear of prosecution if they decide that marriage for same-sex couples stands in opposition to their teachings.
Human diversity is a true gift as evidenced by the fact that families come in a great variety of packages, with differing shapes and sizes, colors, and wrappings. If, however, we still need to cling to a common definition of family, I would remind us of one offered by singers/songwriters, Ron Romanovsky and Paul Phillips, who tell us that “The definition’s plain for anyone to see. Love is all it takes to make a family.”

Dr. Warren J. Blumenfeld is author of Warren’s Words: Smart Commentary on Social Justice (Purple Press); editor of Homophobia: How We All Pay the Price (Beacon Press), and co-editor of Readings for Diversity and Social Justice (Routledge) and Investigating Christian Privilege and Religious Oppression in the United States (Sense), and co-author of Looking at Gay and Lesbian Life (Beacon Press).

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